Archive/File: fascism/canada/alberta keegstra.scc.3
Last-Modified: 1994/11/11
put, namely, the promotion of hatred against an identifiable
group. As for the argument that the courts and legislature
should not involve themselves in the evaluation of
''truth'', ''reasonable grounds for finding truth'' or
''public interest'', the same response applies. Where the
likelihood of truth or benefit from an idea diminishes to
the point of vanishing, and the statement in question has
harmful consequences inimical to the most central values of
a free and democratic society, it is not excessively
problematic to make a judgment that involves limiting
expression.
Before looking at the effect which alternative responses
to hate propaganda have upon the proportionality of s.
319(2), I should comment on a final argument marshalled in
support of striking down s. 319(2) because of overbreadth or
vagueness. It is said that the presence of the legislation
has led authorities to interfere with a diverse range of
political, educational and artistic expression,
demonstrating only too well the way in which overbreadth and
vagueness can result in undue intrusion and the threat of
persecution. In this regard, a number of incidents are cited
where authorities appear to have been overzealous in their
interpretation of the law, including the arrest of
individuals distributing pamphlets admonishing Americans to
leave the country and the temporary holdup at the border of
a film, entitled Nelson Mandela, and Salman Rushdie's novel,
Satanic Verses (1988): see, e.g., Borovoy, op. cit., at p.
141; note that the latter two examples involve not s.
319(2), but similar wording found in the Customs Tariff,
S.C. 1987, c. 49, s. 114, and sch. VII, Code 9956(b)).
That s. 319(2) may in the past have led authorities to
restrict expression offering valuable contributions to the
arts, education or politics in Canada is surely worrying. I
hope, however, that my comments as to the scope of the
provision make it obvious that only the most intentionally
extreme forms of expression will find a place within s.
319(2). In this light, one can safely say that the incidents
mentioned above illustrate not over-expansive breadth and
vagueness in the law, but rather actions by the state which
cannot be lawfully taken pursuant to s. 319(2). The
possibility of illegal police harassment clearly has minimal
bearing on the proportionality of hate propaganda
legislation to legitimate parliamentary objectives, and
hence the argument based on such harassment can be rejected.
c. Alternative modes of furthering Parliament's objective
One of the strongest arguments supporting the contention
that s. 319(2) unacceptably impairs the s. 2(b) guarantee
posits that a criminal sanction is not necessary to meet
Parliament's objective. Thus, even though the terms of s.
319(2) and the nature of the available defences expose an
individual to conviction only in narrow and clearly defined
circumstances, it is said that non-criminal responses can
more effectively combat the harm caused by hate propaganda.
Most generally, it is said that discriminatory ideas can
best be met with information and education programmes
extolling the merits of tolerance and co-operation between
racial and religious groups. As for the prohibition of hate
propaganda, human rights statutes are pointed to as being a
less severe and more effective response than the criminal
law. Such statutes not only subject the disseminator of hate
propaganda to reduced stigma and punishment, but also take a
less confrontational approach to the suppression of such
expression. This conciliatory tack is said to be preferable
to penal sanction because an incentive is offered the
disseminator to co-operate with human rights tribunals and
thus to amend his or her conduct.
Given the stigma and punishment associated with a
criminal conviction and the presence of other modes of
government response in the fight against intolerance, it is
proper to ask whether s. 319(2) can be said to impair
minimally the freedom of expression. With respect to the
efficacy of criminal legislation in advancing the goals of
equality and multicultural tolerance in Canada, I agree that
the role of s. 319(2) will be limited. It is important, in
my opinion, not to hold any illusions about the ability of
this one provision to rid our society of hate propaganda and
its associated harms. Indeed, to become overly complacent,
forgetting that there are a great many ways in which to
address the problem of racial and religious intolerance,
could be dangerous. Obviously, a variety of measures need be
employed in the quest to achieve such lofty and important
goals.
In assessing the proportionality of a legislative
enactment to a valid governmental objective, however, s. 1
should not operate in every instance so as to force the
government to rely upon only the mode of intervention least
intrusive of a Charter right or freedom. It may be that a
number of courses of action are available in the furtherance
of a pressing and substantial objective, each imposing a
varying degree of restriction upon a right or freedom. In
such circumstances, the government may legitimately employ a
more restrictive measure, either alone or as part of a
larger programme of action, if that measure is not
redundant, furthering the objective in ways that alternative
responses could not, and is in all other respects
proportionate to a valid s. 1 aim.
Though the fostering of tolerant attitudes among
Canadians will be best achieved through a combination of
diverse measures, the harm done through hate propaganda may
require that especially stringent responses be taken to
suppress and prohibit a modicum of expressive activity. At
the moment, for example, the state has the option of
responding to hate propaganda by acting under either the
Criminal Code or human rights provisions. In my view, having
both avenues of redress at the state's disposal is justified
in a free and democratic society. I see no reason to assume
that the state will always utilize the most severe tool at
hand, namely, the criminal law, to prevent the dissemination
of hate propaganda. Where use of the sanction provided by s.
319(2) is imprudent, employing human rights legislation may
be the more attractive route to take, but there may equally
be circumstances in which the more confrontational response
of criminal prosecution is best suited to punish a
recalcitrant hate-monger. To send out a strong message of
condemnation, both reinforcing the values underlying s.
319(2) and deterring the few individuals who would harm
target group members and the larger community by
intentionally communicating hate propaganda, will
occasionally require use of the criminal law.
d. Conclusion as to minimal impairment
To summarize the above discussion, in light of the great
importance of Parliament's objective and the discounted
value of the expression at issue I find that the terms of s.
319(2) create a narrowly confined offence which suffers from
neither overbreadth nor vagueness. This interpretation stems
largely from my view that the provision possesses a
stringent mens rea requirement, necessitating either an
intent to promote hatred or knowledge of the substantial
certainty of such, and is also strongly supported by the
conclusion that the meaning of the word ''hatred'' is
restricted to the most severe and deeply-felt form of
opprobrium. Additionally, however, the conclusion that s.
319(2) represents a minimal impairment of the freedom of
expression gains credence through the exclusion of private
conversation from its scope, the need for the promotion of
hatred to focus upon an identifiable group and the presence
of the s. 319(3) defences. As for the argument that other
modes of combatting hate propaganda eclipse the need for a
criminal provision, it is eminently reasonable to utilize
more than one type of legislative tool in working to prevent
the spread of racist expression and its resultant harm. It
will indeed be more difficult to justify a criminal statute
under s. 1, but in my opinion the necessary justificatory
arguments have been made out with respect to s. 319(2).
I thus conclude that s. 319(2) of the Criminal Code does
not unduly impair the freedom of expression, and it remains
only to examine whether its effects none the less present so
grave a limitation upon the s. 2(b) guarantee so as to
outweigh the benefits to be gained from a measure otherwise
proportional to an important legislative objective.
(iv) Effects of the limitation
The third branch of the proportionality test entails a
weighing of the importance of the state objective against
the effect of limits imposed upon a Charter right or
guarantee. Even if the purpose of the limiting measure is
substantial and the first two components of the
proportionality test are satisfied, the deleterious effects
of a limit may be too great to permit the infringement of
the right or guarantee in issue.
I have examined closely the significance of the freedom
of expression values threatened by s. 319(2) and the
importance of the objective which lies behind the criminal
prohibition. It will by now be quite clear that I do not
view the infringement of s. 2(b) by s. 319(2) as a
restriction of the most serious kind. The expressive
activity at which this provision aims is of a special
category, a category only tenuously connected with the
values underlying the guarantee of freedom of speech.
Moreover, the narrowly drawn terms of s. 319(2) and its
defences prevent the prohibition of expression lying outside
of this narrow category. Consequently, the suppression of
hate propaganda affected by s. 319(2) represents an
impairment of the individual's freedom of expression which
is not of a most serious nature.
It is also apposite to stress yet again the enormous
importance of the objective fueling s. 319(2), an objective
of such magnitude as to support even the severe response of
criminal prohibition. Few concerns can be as central to the
concept of a free and democratic society as the dissipation
of racism, and the especially strong value which Canadian
society attaches to this goal must never be forgotten in
assessing the effects of an impugned legislative measure.
When the purpose of s. 319(2) is thus recognized, I have
little trouble in finding that its effects, involving as
they do the restriction of expression largely removed from
the heart of free expression values, are not of such a
deleterious nature as to outweigh any advantage gleaned from
the limitation of s. 2(b).
E. Analysis of s. 319(2) under s. 1 of the Charter:
Conclusion
I find that the infringement of the respondent's freedom
of expression as guaranteed by s. 2(b) should be upheld as a
reasonable limit prescribed by law in a free and democratic
society. Furthering an immensely important objective and
directed at expression distant from the core of free
expression values, s.
319(2) satisfies each of the components of the
proportionality inquiry. I thus disagree with the Alberta
Court of Appeal's conclusion that this criminal prohibition
of hate propaganda violates the Charter, and would allow the
appeal in this respect.
VIII Section 319(3)(a) and the Presumption of Innocence
As already noted, s. 319(3)(a) of the Criminal Code
provides that no person shall be convicted of wilfully
promoting hatred ''if he establishes that the statements
communicated were true''. This provision is challenged as
breaching the presumption of innocence guaranteed in s.
11(d) of the Charter. The court must therefore decide
whether permitting an accused to raise the defence of truth
on the balance of probabilities creates a reverse onus,
thereby infringing s. 11(d). If s. 11(d) is so infringed,
the focus of the inquiry shifts to examine the
justifiability of the reverse onus under s. 1 of the Charter.
A. Section 319(3)(a) and infringement of s. 11(d) of the
Charter
In a prosecution under s. 319(2), the Crown must prove
beyond a reasonable doubt the various elements of the
offence, namely, that the accused, by communicating
statements other than in private conversation, wilfully
promoted hatred against a group identifiable by colour,
race, religion or ethnic origin. Determining whether an
accused falls within the terms of s. 319(2) does not require
that the trier of fact examine the truth or falsity of the
statements. The defence of truth, to be established by the
accused on the balance of probabilities, is thus only
considered if the Crown proves the components of s. 319(2)
beyond a reasonable doubt.
The judgments of the appeal courts in this case and in
the accompanying appeal of Andrews reveal a divergence of
opinion as to whether s. 11(d) of the Charter is infringed
by the truth defence. In the Alberta Court of Appeal, Kerans
J.A. viewed as crucial the possibility that an accused can
be convicted of wilfully promoting hatred though there
exists a reasonable doubt that the statements communicated
are true. As the defence places an onus on the accused to
prove truth on the balance of probabilities, he thus found
it to infringe s. 11(d). In contrast to this conclusion, the
Ontario Court of Appeal in R. v. Andrews, supra, found that
s. 319(3)(a) does not place a true reverse onus upon the
accused. Relying upon the majority judgment in R. v. Holmes
(1988), 41 C.C.C. (3d) 497, 50 D.L.R. (4th) 680, [1988] 1
S.C.R. 914, Grange J.A. felt that s. 319(3)(a) provides a
defence which becomes applicable only after all elements of
the offence have been proven beyond a reasonable doubt, a
circumstance which was said to avoid infringing the
presumption of innocence (p. 225). Grange J.A. distinguished
this court's decision in R. v. Whyte (1988), 42 C.C.C. (3d)
97, 51 D.L.R. (4th) 481, [1988] 2 S.C.R. 3, on the grounds
that the statutory presumption challenged in that case
related to the proof of an essential element of the offence.
It is not overly difficult to settle the disagreement
between the Alberta and Ontario Appeal Courts. Though some
confusion may have existed after the decision of this court
in Holmes, since Whyte it is clear that the presumption of
innocence is infringed whenever the accused is liable to be
convicted despite the existence of a reasonable doubt as to
guilt in the mind of the trier of fact. As was stated by a
unanimous bench in Whyte (at p. 109):
... the distinction between elements of the offence and
other aspects of the charge is irrelevant to the s. 11(d)
inquiry. The real concern is not whether the accused must
disprove an element or prove an excuse, but that an accused
may be convicted while a reasonable doubt exists. When that
possibility exists, there is a breach of the presumption of
innocence.
The exact characterization of a factor as an essential
element, a collateral factor, an excuse, or a defence should
not affect the analysis of the presumption of innocence. It
is the final effect of a provision on the verdict that is
decisive. If an accused is required to prove some fact on
the balance of probabilities to avoid conviction, the
provision violates the presumption of innocence because it
permits a conviction in spite of a reasonable doubt in the
mind of the trier of fact as to the guilt of the accused.
The trial of an accused in a criminal matter cannot be
divided neatly into stages, with the onus of proof on the
accused at an intermediate stage and the ultimate onus on
the Crown.
As is evident from the above quotation, the
categorization of a factual finding as forming an element
''essential'' to the offence is of no consequence when
determining whether s. 11(d) has been breached.
Applying the approach taken in Whyte to this appeal, it
is obvious that s. 319(3)(a) runs afoul of the presumption
of innocence. Contrary to the arguments of those who would
find s. 319(3)(a) compatible with s. 11(d), it matters not
that the defence of truth may be intended to play a minor
role in providing relief from conviction. What is of essence
is not the ''essential nature'' of the crime, but that the
trier of fact will have to convict even where there is a
reasonable doubt as to the truth of an accused's statements.
This result means that s. 11(d) is infringed, making
necessary an inquiry as to whether s. 319(3)(a) can be
justified under s. 1 of the Charter.
B. Justifiability of s. 319(3)(a) under s. 1 of the Charter
In seeing whether the truth defence is justifiable as a
reasonable limit in a free and democratic society, my
general comments regarding the role of s. 1 and the Oakes
test obviously apply. As well, much of what has been said in
discussing s. 319(2) is pertinent, though it remains
necessary to undertake a separate inquiry into the validity
of s. 319(3)(a)'s reverse onus.
The impetus behind s. 319(3)(a) represents somewhat of a
caveat to the broad objectives underlying the offence in s.
319(2). As explored earlier, domestic and international
commitments to freedom of expression, equality, and respect
for human dignity and multiculturalism lay the foundation
for the offence of the wilful promotion of hatred. Without
rejecting this broad foundational base, the objective of s.
319(3)(a) is attributable to the importance given the
expression of truth by Parliament: see the Cohen Committee,
op. cit., at p. 66, and the Law Reform Commission of Canada,
op. cit., at p. 36. Specifically, the truth defence allows
an accused to escape liability based on the possibility that
the statements made, while intended to promote hatred, none
the less possess increased merit (in relation to free
expression values) because of their truthful nature.
That a defence may be warranted by reason of the merit
associated with truthful statements does not, however, make
clear Parliament's objective in requiring that the accused
prove truthfulness on a balance of probabilities.
The objective behind the defence's reverse onus is closely
connected with the purpose fueling the offence in s. 319(2).
Harm is created whenever statements are made with the
intention of promoting hatred, whether or not they contain
an element of truth. If the defence is too easily used, the
pressing and substantial objective of Parliament in
preventing such harm will suffer unduly, and it is therefore
in the furtherance of that same objective that truthfulness
must be proved by the accused on the balance of
probabilities. For the reasons given in discussing the
purpose behind s. 319(2), I consequently find that
Parliament's objective in employing a reverse onus in s.
319(3)(a) is pressing and substantial.
Moving on to examine the proportionality of the reverse
onus measure to the legislative objective, the first
question to ask is whether s. 319(3)(a) evinces a rational
connection to the purpose of preventing the harm caused by
hate-promoting expression. In my view, such a connection
plainly exists. The reverse onus in the truth defence
operates so as to make it more difficult to avoid conviction
where the wilful promotion of hatred has been proven beyond
a reasonable doubt. As the wilful promotion of hatred is
hostile to Parliament's aims, placing such a burden upon the
accused is rationally connected to a valid s. 1 objective.
The second component of the proportionality inquiry asks
whether the impugned measure impairs the right or freedom as
little as possible. Instrumental in reaching a conclusion as
to minimal impairment is the nature of the defence in issue,
and most especially its relation to the offence set out in
s. 319(2). As I have stated in discussing the
proportionality of s. 319(2), the defence of truth is in
some ways at odds with Parliament's purpose of preventing
the damage to target group members and inter-group harmony
caused by hate propaganda; it works to excuse the actions of
an accused even though the harm sought to be prevented is
present. To provide the accused with such an escape route
may not be required under the Charter, but neither is it
illogical. Out of caution Parliament has made a concession
to the importance of truth in freedom of expression values,
a concession designed to allow an accused person to benefit
from the tangential possibility that his or her statements,
though admittedly defamatory of targeted groups, may have
some social utility as part of legitimate public dialogue.
In the over-all context of the s. 319(2) offence, it is
therefore evident that Parliament has used the reverse onus
provision to strike a balance between two legitimate
concerns. Requiring the accused to prove on the civil
standard that his or her statements are true is an integral
part of this balance, and any less onerous burden would
severely skew the equilibrium. To include falsity as a
component of s. 319(2) for example, or even to require only
that the accused raise a reasonable doubt as to the
truthfulness of the statements, would excessively compromise
the effectiveness of the offence in achieving its purpose.
The former option would especially hinder Parliament's
objective, for many statements are not susceptible to a
true/false categorization. In either instance, however,
where a reasonable doubt existed as to the falsity of an
accused's statements an acquittal would be entered. To
accept such a result it would have to be agreed that this
relatively small possibility of truthfulness outweighs the
harm caused through the wilful promotion of hatred. Yet to
my mind the crucial objective of Parliament in this appeal
justifies requiring a more convincing demonstration that a
hate-monger's statements may be true, as a successful
defence provides an excuse despite the presence of the harm
sought to be eradicated: see Rauf, op. cit., at pp. 368-9).
Having the accused prove truthfulness on the balance of
probabilities is an understandable and valid precaution
against too easily justifying such harm, and I hence
conclude that the reverse onus provision in s. 319(3)(a)
represents a minimal impairment of the presumption of
innocence.
As for the final segment of the Oakes proportionality
inquiry, I have no difficulty in finding that the importance
of preventing the harm caused by hate-promoting expression
is not outweighed by Parliament's infringement of s. 11(d)
of the Charter. In reaching this conclusion I would refer to
the approach taken by this court in Whyte. There, the
accused challenged what is now s. 258(1)(a) of the Criminal
Code, which creates the presumption that a person in the
driver's seat of a vehicle has care or control of the
vehicle for the purposes of the impaired driving provisions.
This presumption can only be overcome if the accused proves
that he or she occupied the driver's seat for some purpose
other than setting the vehicle in motion. In upholding the
statutory presumption under s. 1, this court stated the
following regarding the proportionality between the effects
of the measure and the objective (at p. 116):
... [258(1)(a)] satisfies [the] final element in s. 1
analysis. The threat to public safety posed by drinking and
driving has been established by evidence in this case and
recognized by this court in others. While [s. 258(1)(a)]
does infringe the right guaranteed by s. 11(d) of the
Charter, it does so in the context of a statutory setting
which makes it impracticable to require the Crown to prove
an intention to drive. The reverse onus provision, in
effect, affords a defence to an accused which could not
otherwise be made available.
In Whyte, the impugned statutory presumption was found to
be justified despite its effect upon the presumption of
innocence only after an examination of the history of
drinking and driving legislation, and a recognition of both
the serious societal danger of drinking and driving and the
difficulties associated with requiring the Crown to prove an
intention to drive. As already noted, similar factors
operate to justify the reverse onus provision challenged in
this appeal, in particular the significant importance
attached to preventing the harm caused by hate-promoting
expression and the fact that the truth defence operates
despite the presence of such harm. The infringement of s.
11(d) thus occurs in the context of a statutory and
practical setting that makes it unworkable to require the
Crown to prove the falsity of the statements in issue, and
using the words of Whyte I conclude that the reverse onus
provision in s. 319(3)(a), in effect, affords a defence to
an accused which could not otherwise be made available.
C. Conclusion respecting s. 319(3)(a)
In sum, having followed this court's decision in Whyte in
deciding that s. 319(3)(a) infringes s. 11(d) of the
Charter, I none the less find the impugned provision to be
justified under s. 1. The reverse onus found in the truth
defence represents the only way in which the defence can be
offered while still enabling Parliament to prohibit
effectively hate-promoting expression through criminal
legislation; to require that the state prove beyond a
reasonable doubt the falsity of a statement would excuse
much of the harmful expressive activity caught by s. 319(2)
despite minimal proof as to its worth. In my opinion,
justification for this reverse onus must therefore reside in
the fact that it only applies where the Crown has proven
beyond a reasonable doubt an intent to promote harm-causing
hatred, and in the recognition that excessive deference to
the possibility that a statement is true will undermine
Parliament's objective.
IX Conclusion
In so far as its purpose is to prohibit the expression of
certain meanings, s. 319(2) of the Criminal Code infringes
the guarantee of freedom of expression found in s. 2(b) of
the Charter. Given the importance of Parliament's purpose in
preventing the dissemination of hate propaganda and the
tenuous connection such expression has with s. 2(b) values,
however, I have found the narrowly drawn parameters of s.
319(2) to be justifiable under s. 1. Similarly, although the
reverse onus provision contained in s. 319(3)(a) conflicts
with the s. 11(d) presumption of innocence, it can be seen
as a justifiable means of excusing truthful statements
without undermining the objective of preventing harm caused
by the intentional promotion of hatred.
Having come to these conclusions, I answer the
constitutional questions in the following manner:
1. Is s. 281.2(2) of the Criminal Code of Canada, R.S.C.
1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada,
R.S.C., 1985, c. C-46) an infringement of freedom of
expression as guaranteed under s. 2(b) of the Canadian
Charter of Rights and Freedoms?
Answer: Yes.
2. If s. 281.2(2) of the Criminal Code of Canada, R.S.C.
1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada,
R.S.C., 1985, c. C-46) is an infringement of s. 2(b) of the
Canadian Charter of Rights and Freedoms, can it be upheld
under s. 1 of the Charter as a reasonable limit prescribed
by law and demonstrably justified in a free and democratic
society?
Answer: Yes.
3. Is s. 281.2(3)(a) of the Criminal Code of Canada,
R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code
of Canada, R.S.C., 1985, c. C-46) an infringement of the
right to be presumed innocent, as guaranteed under s. 11(d)
of the Canadian Charter of Rights and Freedoms?
Answer: Yes.
4. If s. 281.2(3)(a) of the Criminal Code of Canada,
R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code
of Canada, R.S.C., 1985, c. C-46) is an infringement of s.
11(d) of the Canadian Charter of Rights and Freedoms, can it
be upheld under s. 1 of the Charter as a reasonable limit
prescribed by law and demonstrably justified in a free and
democratic society?
Answer: Yes.
I would thus reverse the decision of the Alberta Court of
Appeal and allow the appeal. This case should return to the
Court of Appeal in order to resolve those issues left
unexamined by reason of its decision to strike down the
impugned provisions.
Wilson J. concurs with Dickson C.J.C.
La Forest J. (dissenting):
I agree with Madame Justice McLachlin on the issues
respecting freedom of expression and I would accordingly
dispose of the appeal and answer the first two
constitutional questions as she does. I find it unnecessary
to consider the issues respecting the right to be presumed
innocent and, in consequence, to answer the other
constitutional questions.
L'Heureux-Dube J. concurs with Dickson C.J.C.
Sopinka J. concurs with McLachlin J.
Gonthier J. concurs with Dickson C.J.C.
McLachlin J. (dissenting):
Introduction
The issue on this appeal is whether ss. 319(2) and 319(3)
of the Criminal Code, R.S.C., 1985, c. C-46, creating the
offence of unlawfully promoting hatred, should be struck
down on the ground that they infringe the guarantees of free
expression and the presumption of innocence embodied in the
Canadian Charter of Rights and Freedoms.
Mr. Keegstra, a secondary school teacher in Eckville, a
small town in Alberta, was convicted of unlawfully promoting
hatred under s. 319(2). The evidence established that he had
systematically denigrated Jews and Judaism in his classes.
He described Jews by such epithets as ''revolutionists'',
''treacherous'', ''imposters'', ''communists'', ''secret'',
''sneaky'', ''manipulative'', and ''deceptive''. He taught
that the Jewish people are ''barbaric'', ''subversive'',
''sadistic'', ''materialistic'', ''money-loving'' and
''power hungry''. He maintained that anyone Jewish must be
evil and that anyone evil must be Jewish. Not only did he
maintain these things; he advised the students that they
must accept his views as true unless they were able to
contradict them. Moreover, he expected his students to
regurgitate these notions in essays and examinations. If
they did so, they received good marks. If they did not,
their marks were poor.
Prior to his trial, Mr. Keegstra had applied to a judge
of the Alberta Court of Queen's Bench for an order quashing
the charge on the ground that s. 319(2) of the Criminal Code
violates the right of freedom of expression guaranteed by
the Charter. Quigley J. rejected this contention: 19 C.C.C.
(3d) 254, 87 A.R. 200. He regarded the section, not as a
limit on freedom of expression, but rather as a safeguard
promoting freedom of expression. In his view, ''freedom of
expression'' in s. 2(b) of the Charter does not mean an
absolute freedom conferring an unabridged right of speech or
expression. He added that if he were wrong in concluding
that s. 319(2) did not infringe s. 2(b), he would find that
the limit was a reasonable one, demonstrably justified in a
free and democratic society within s. 1 of the Charter.
The Court of Appeal, however, reversed this decision, and
quashed the conviction entered at trial: 43 C.C.C. (3d) 150,
65 C.R. (3d) 289, 39 C.R.R. 5. In its view, s. 319(2) of the
Criminal Code violated the Charter in two ways.
First, it infringed the presumption of innocence by making
the truth of statements promoting hatred a defence, but
placing the burden of proving them on the accused. Secondly,
it violated the guarantee of free speech in s. 2(b) of the
Charter. The court, per Kerans J.A., held that ''imprudent
promotion of hatred falls within the definition of freedom
of expression'' (p. 162) in that section, and that mistakes
of fact by speakers -- even by speakers who have no
reasonable grounds for the mistake -- are protected under
the Charter.
Nor was the violation saved by s. 1 of the Charter, in
the opinion of the Court of Appeal. ''This rule is overly
broad,'' Kerans J.A. observed [at p. 176], pointing out that
the section does not require that anyone actually come to
hate a member of the protected group as a result of the
promotion of hatred by the offender. He accepted that the
spread of hatred against target groups might be justifiably
regulated, but found the fact that the law criminalizes mere
attempts to do so and leaves no room for the defence of
honest mistake precluded its justification as a reasonable
measure justified in a democratic society. Nor, in the view
of Mr. Justice Kerans, did the values of multiculturalism
and equality enshrined in the Charter make the limit imposed
on free expression by s. 319(2) of the Criminal Code
reasonable under s. 1. Section 15 is restricted to
government action, while the concern of s. 319(2) is
individual expression -- expression protected by s. 2(b) of
the Charter. In Kerans J.A.'s view, nothing in the Charter
suggests a legally enforceable orthodoxy in matters of
expression. On the contrary, our commitment to the
marketplace of ideas precludes us from presuming that those
who promote hatred will be successful in fomenting it among
the majority of Canadians. Moreover, freedom of expression
is an individual liberty of such importance that it can be
overridden only by an extraordinarily weighty public goal.
In the end the Court of Appeal held that the Charter
protected even imprudent promotion of hatred, up to the
point where it actually caused listeners to hate target
groups.
The Crown appeals to this court.
Statutory provisions
The respondent was charged under s. 319(2) of the
Criminal Code, which provides:
319(2) Every one who, by communicating statements, other
than in private conversation, wilfully promotes hatred
against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment
for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
(3) No person shall be convicted of an offence under
subsection (2)
(a) if he establishes that the statements communicated
were true;
(b) if, in good faith, he expressed or attempted to
establish by argument an opinion on a religious subject;
(c) if the statements were relevant to any subject of
public interest, the discussion of which was for the public
benefit, and if on reasonable grounds he believed them to be
true; or
(d) if, in good faith, he intended to point out, for the
purpose of removal, matters producing or tending to produce
feelings of hatred toward an identifiable group in Canada.
(6) No proceeding for an offence under subsection (2)
shall be instituted without the consent of the Attorney
General.
(7) In this section,
''communicating'' includes communicating by telephone,
broadcasting or other audible or visible means;
''identifiable group'' has the same meaning as in section 318;
''public place'' includes any place to which the public
have access as of right or by invitation, expressed or
implied:
''statements'' includes words spoken or written or
recorded electronically or electro-magnetically or
otherwise, and gestures, signs or other visible
representations.
''Identifiable group'' is defined as follows:
318(4) In this section, ''identifiable group'' means any
section of the public distinguished by colour, race,
religion or ethnic origin.
It will be observed that what is prohibited is the wilful
promotion of hatred of identifiable groups. Casual slips of
the tongue are not actionable. On the other hand, it is not
necessary that the statements actually have the effect of
promoting hatred. Truth is a defence, but the burden of
establishing it lies on the accused.
This provision must be tested against the principles
established in the Charter, and in particular, the following
sections:
1. The Canadian Charter of Rights and Freedoms guarantees
the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according
to law in a fair and public hearing by an independent and
impartial tribunal;
15(1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit
of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical
disability.
27. This Charter shall be interpreted in a manner
consistent with the preservation and enhancement of the
multicultural heritage of Canadians.
Issues
The issues are the following:
1. Does s. 319(2) of the Criminal Code breach s. 2(b) of
the Charter?
2. Do ss. 319(2) and 319(3) of the Criminal Code breach
s. 11(d) of the Charter?
3. If the answer to either questions 1 or 2 is
affirmative, can the infringements be justified under s. 1
of the Charter?
The following constitutional questions stated by the
Dickson C.J.C. reflect these issues:
1. Is s. 281.2(2) of the Criminal Code of Canada, R.S.C.
1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada,
R.S.C., 1985, c. C-46) an infringement of freedom of
expression as guaranteed under s. 2(b) of the Canadian
Charter of Rights and Freedoms?
2. If s. 281.2(2) of the Criminal Code of Canada, R.S.C.
1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada,
R.S.C., 1985, c. C-46) is an infringement of s. 2(b) of the
Canadian Charter of Rights and Freedoms, can it be upheld
under s. 1 of the Charter as a reasonable limit prescribed
by law and demonstrably justified in a free and democratic
society?
3. Is s. 281.2(3)(a) of the Criminal Code of Canada,
R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code
of Canada, R.S.C., 1985, c. C-46) an infringement of the
right to be presumed innocent, as guaranteed under s. 11(d)
of the Canadian Charter of Rights and Freedoms?
4. If s. 281.2(3)(a) of the Criminal Code of Canada,
R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code
of Canada, R.S.C., 1985, c. C-46) is an infringement of s.
11(d) of the Canadian Charter of Rights and Freedoms, can it
be upheld under s. 1 of the Charter as a reasonable limit
prescribed by law and demonstrably justified in a free and
democratic society?
Analysis
I. Background
This case poses questions of great importance and
difficulty. In order to situate them in their proper
context, I preface my analysis of the issues with a brief
philosophical and historical perspective of the role of free
expression in our society, both in general terms and in
relation to hate propaganda.
A. A Philosophical view of freedom of expression and the
Charter
Various philosophical justifications exist for freedom of
expression. Some of these posit free expression as a means
to other ends. Others see freedom of expression as an end in
itself.
Salient among the justifications for free expression in
the first category is the postulate that the freedom is
instrumental in promoting the free flow of ideas essential
to political democracy and the functioning of democratic
institutions. This is sometimes referred to as the political
process rationale: see A. W. MacKay, ''Freedom of
Expression: Is it All Just Talk?'', 68 Can. Bar Rev. 713
(1989). The locus classicus of this rationale is A.
Meiklejohn, Free Speech and its Relation to Self-Government
(1948).
A corollary of the view that expression must be free
because of its role in the political process is that only
expression relating to the political process is worthy of
constitutional protection. However, within these limits
protection for expression is said to be absolute. The
political process rationale has played a significant role in
the development of First Amendment doctrine in the United
States, and various justices of the U.S. Supreme Court
(though never a majority) have embraced its theory that
protection of speech is absolute within these restricted
bounds. Its importance has also been affirmed by Canadian
courts, both before and since the advent of the Charter.
A variant on the political process theory ascribes to
freedom of expression a central role as the pivotal freedom
on which all others depend. Without the freedom to comment
and criticize, other fundamental rights and freedoms may be
subverted by the state. This argument gives freedom of
expression an enhanced status in relation to other rights.
The validity of the political process rationale for
freedom of expression is undeniable. It is, however,
limited. It justifies only a relatively narrow sector of
free expression -- one much narrower than either the wording
of the First Amendment or s. 2(b) of the Charter would
suggest.
Another venerable rationale for freedom of expression
(dating at least to Milton's Areopagitica in 1644) is that
it is an essential precondition of the search for truth.
Like the political process model, this model is instrumental
in outlook. Freedom of expression is seen as a means of
promoting a ''marketplace of ideas'', in which competing
ideas vie for supremacy to the end of attaining the truth.
The ''marketplace of ideas'' metaphor was coined by Justice
Oliver Wendell Holmes, in his famous dissent in Abrams v.
United States, 250 U.S. 616 (1919). This approach, however,
has been criticized on the ground that there is no guarantee
that the free expression of ideas will in fact lead to the
truth. Indeed, as history attests, it is quite possible that
dangerous, destructive and inherently untrue ideas may
prevail, at least in the short run.
Notwithstanding the cogency of this critique, it does not
negate the essential validity of the notion of the value of
the marketplace of ideas. While freedom of expression
provides no guarantee that the truth will always prevail, it
still can be argued that it assists in promoting the truth
in ways which would be impossible without the freedom. One
need only look to societies where free expression has been
curtailed to see the adverse effects both on truth and on
human creativity. It is no coincidence that in societies
where freedom of expression is severely restricted truth is
often replaced by the coerced propagation of ideas that may
have little relevance to the problems which the society
actually faces. Nor is it a coincidence that industry,
economic development and scientific and artistic creativity
may stagnate in such societies.
Moreover, to confine the justification for guaranteeing
freedom of expression to the promotion of truth is arguably
wrong, because however important truth may be, certain
opinions are incapable of being proven either true or false.
Many ideas and expressions which cannot be verified are
valuable. Such considerations convince me that freedom of
expression can be justified at least in part on the basis
that it promotes the ''market-place of ideas'', and hence, a
more relevant, vibrant and progressive society.
But freedom of expression may be viewed as more than a
means to other ends. Many assert that free expression is an
end in itself, a value essential to the sort of society we
wish to preserve. This view holds that freedom of expression
''derives from the widely accepted premise of Western
thought that the proper end of man is the realization of his
character and potentialities as a human being''. It follows
from this premise that all persons have the right to form
their own beliefs and opinions, and to express them. ''For
expression is an integral part of the development of ideas,
of mental exploration and of the affirmation of self'': T.
I. Emerson, ''Toward a General Theory of the First
Amendment'' (1963), 72 Yale L.J. 877 at p. 879. It is
demeaning of freedom of expression and wrong, the proponents
of this view argue, to conceive the right only in terms of
the ends it may assist in achieving. ''[]t is not a general
measure of the individual's right to freedom of expression
that any particular exercise of the right may be thought to
promote or retard other goals of the society'' (p. 880).
Freedom of expression is seen as worth preserving for its
own intrinsic value.
Those who assert that freedom of expression is worth
protecting for its intrinsic value to the self-realization
of both speaker and listener tend to combine this rationale
with others: see for example, Emerson, ibid., and L. Tribe,
American Constitutional Law, 2nd ed. (1988), at pp. 785-9.
On its own, this justification for free expression is
arguably too broad and amorphous to found constitutional
principle. Furthermore, it does not answer the question of
why expression should be deserving of special constitutional
status, while other self-fulfilling activities are not.
Nevertheless, an emphasis on the intrinsic value of freedom
of expression provides a useful supplement to the more
utilitarian rationales, justifying, for example, forms of
artistic expression which some might otherwise be tempted to
exclude.
Arguments based on intrinsic value and practical
consequences are married in the thought of E. Schauer (Free
Speech: A Philosophical Enquiry (1982)). Rather than
evaluating expression to see why it might be worthy of
protection, Schauer evaluates the reasons why a government
might attempt to limit expression. Schauer points out that
throughout history, attempts to restrict expression have
accounted for a disproportionate share of governmental
blunders -- from the condemnation of Galileo for suggesting
the earth is round to the suppression as ''obscene'' of many
great works of art. Professor Schauer explains this peculiar
inability of censoring governments to avoid mistakes by the
fact that, in limiting expression, governments often act as
judge in their own cause. They have an interest in stilling
criticism of themselves, or even in enhancing their own
popularity by silencing unpopular expression. These motives
may render them unable to carefully weigh the advantages and
disadvantages of suppression in many instances. That is not
to say that it is always illegitimate for governments to
curtail expression, but government attempts to do so must
prima facie be viewed with suspicion.
Schauer's approach reminds us that no one rationale
provides the last word on freedom of expression. Indeed, it
seems likely that theories about freedom of expression will
continue to develop.
How do these diverse justifications of freedom of
expression relate to s. 2(b) of the Charter? First, it may
be noted that the broad wording of s. 2(b) of the Charter is
arguably inconsistent with a justification based on a single
facet of free expression. This suggests that there is no
need to adopt any one definitive justification for freedom
of expression. Different justifications for freedom of
expression may assume varying degrees of importance in
different fact situations. However, each of the above
rationales is capable of providing guidance as to the scope
and content of s. 2(b).
The interpretation which has been placed on s. 2(b) of
the Charter confirms the relevance of both instrumental and
intrinsic justifications for free expression. This court has
adopted a purposive approach in construing the rights and
freedoms guaranteed by the Charter. When placed in the
context of the judicial history of freedom of expression in
Canada, it suggests that it is appropriate to consider the
ends which freedom of speech may serve in determining its
scope and the justifiability of infringements upon it. These
ends include the maintenance of our democratic rights and
the benefits to be gained from the pursuit of truth and
creativity in science, art, industry and other endeavours.
At the same time, the emphasis which this court has placed
upon the inherent dignity of the individual in interpreting
Charter guarantees, suggests that the rationale of
self-actualization should also play an important part in
decisions under s. 2(b) of the Charter.
In accordance with this eclectic approach, the court in
Irwin Toy Ltd. v. Quebec (Attorney-General) (1989), 58
D.L.R. (4th) 577, [1989] 1 S.C.R. 927, 25 C.P.R. (3d) 417,
identified three values as underlying the guarantee of
freedom of expression in s. 2(b) of the Charter: the value
of seeking and attaining truth; the value of participation
in social and political decision-making, and individual
self-fulfillment and human flourishing.
Free expression is a fundamental value in our society for
any and all of these reasons. Nevertheless, it is not an
absolute value. Like other liberties which we prize so
highly, freedom of expression must in certain circumstances
give way to countervailing considerations. The question is
always one of balance. Freedom of expression protects
certain values which we consider fundamental -- democracy, a
vital, vibrant and creative culture, the dignity of the
individual. At the same time, free expression may put other
values at risk. It may harm reputations, incite acts of
violence. It may be abused to undermine our fundamental
governmental institutions and undercut racial and social
harmony. The law may legitimately trench on freedom of
expression where the value of free expression is outweighed
by the risks engendered by allowing freedom of expression.
The framers of the Charter recognized both the
fundamental nature of freedom of expression and the
necessity of sometimes limiting it where the risks it poses
are too great for society to tolerate. Its importance is
reflected in the broad and untrammelled definition of
expression embodied in s. 2(b). The guarantee of free
expression is not internally limited as are certain other
Charter rights (e.g., s. 8 of the Charter) or as are the
equivalent guarantees in the European Convention for the
Protection of Human Rights and Fundamental Freedoms, 213
U.N.T.S. 221 (1950), and the International Covenant on Civil
and
Political Rights, 999 U.N.T.S. 171 (1966). The guarantees of
free expression in those documents explicitly permit a wide
variety of limitations on free expression -- limitations
which the person asserting the right of free expression must
observe. By contrast, the Canadian guarantee of free
expression is more comprehensive. The provision is a very
broad guarantee, and all expression is prima facie
protected. Any infringement must be justified by the state
under s. 1. Moreover, as will be observed infra, freedom of
expression had achieved a near-constitutional status in
Canada long before its specific entrenchment by the Charter.
All this suggests that the framers of the Charter envisaged
freedom of expression as a comprehensive, fundamental right
of great importance.
At the same time, the Charter permits freedom of speech
to be restricted by law where this is justified by the need
to protect more important countervailing values. Thus, the
broad guarantee of freedom of expression in s. 2(b) of the
Charter is made subject to s. 1 which permits such
reasonable limitations on the right as may be justified in a
free and democratic society.
B. The historical perspective
Freedom of speech and the press had acquired
quasi-constitutional status well before the adoption of the
Charter in 1982. In a series of cases dealing with
legislation passed by repressive provincial regimes, the
Supreme Court endorsed the proposition that the right to
express political ideas could not be trammelled by the
legislatures: see MacKay, op. cit., at pp. 715-6.
The focus of these decisions was the division of powers
between the provinces and the federal government. The
Alberta Press reference ( Reference Re Alberta Legislation,
[1938] 2 D.L.R. 81, [1938] S.C.R. 100) provides a good
example. At issue was a bill introduced by the Alberta
legislature to compel newspapers to disclose their sources
of news information and to print government statements
correcting previous articles. The bill was struck down on
the basis that the province had no jurisdiction over the
free working of the political institutions of the state.
Political expression, vital to the country as a whole, could
not be limited by provincial legislation.
This approach to free expression was accepted and
amplified by some judges of this court in Saumur v. City of
Quebec and A.-G. Que. (1953), 106 C.C.C. 289, [1953] 4
D.L.R. 641, [1953] 2 S.C.R. 299, and Switzman v. Elbling
(1957), 117 C.C.C. 129, [1957] S.C.R. 285, [1953] 7 D.L.R.
(2d) 337. Rand J. and Abbott J. spoke of an implied bill of
rights arising out of the provision in the Constitution Act,
1867, for ''a constitution similar in principle to that of
the United Kingdom.''
These decisions confirmed the fundamental importance of
freedom of speech and the press in Canada. The conception of
freedom of speech embodied in these cases, however, was
largely limited to the political process model. Subsequent
cases, such as Cherneskey v. Armadale Publishers Ltd.
(1978), 90 D.L.R. (3d) 321, [1979] 1 S.C.R. 1067 [1978] 6
W.W.R. 618, suggested an unwillingness to promote a broad
concept of freedom of expression. Furthermore, in the pre-
Charter context fundamental notions of free speech were
ultimately recognized as subservient to legislative limits.
The concept of an implied bill of rights put forward in
Saumur and Switzman was rejected by the court in A.-G. Can.
v. Dupond (1978), 84 D.L.R. (3d) 420, [1978] 2 S.C.R. 770,
19 N.R. 478, and the overriding power of legislatures to
define the limits of free speech was confirmed in
Canada (Attorney-General) v. Law Society of British Columbia
(1982), 137 D.L.R. (3d) 1, 66 C.P.R. (2d) 1, [1982] 2 S.C.R.
307.
Nevertheless, one thing that has remained constant
through all the decisions, is the recognition that freedom
of speech is a fundamental Canadian value.
Other pre- Charter cases reflected a broader approach to
the scope of free speech concerns. In Boucher v. The King
(1951), 99 C.C.C. 1 & 96 C.C.C. 48, [1951] 2 D.L.R. 369,
[1951] S.C.R. 265, this court affirmed the fundamental value
of freedom of speech not only in our political system, but
also in society generally. Rand J. wrote at pp. 70-7, 96
C.C.C. 48:
Freedom in thought and speech and disagreement in ideas
and beliefs, on every conceivable subject, are of the
essence of our life. The clash of critical discussion on
political, social and religious subjects has too deeply
become the stuff of daily experience to suggest that mere
ill-will as a product of controversy can strike down the
latter with illegality...Controversial fury is aroused
constantly by differences in abstract conceptions; heresy in
some fields is again a mortal sin; there can be fanatical
puritanism in ideas as well as in mortals; but our compact
of free society accepts and absorbs these differences and
they are exercised at large within the framework of freedom
and order on broader and deeper uniformities as bases of
social stability.
The enactment of s. 2(b) of the Charter represented both
the continuity of these traditions, and a new flourishing of
the importance of freedom of expression in Canadian society.
As Professor MacKay has stated, op. cit., at p. 714
''Freedom of expression was not invented by the Charter of
Rights and Freedoms but it has acquired new dimensions as a
consequence of its entrenchment.'' Continuity has been
stressed in cases such as R.W.D.S.U. v. Dolphin Delivery
Ltd. (1986), 33 D.L.R. (4th) 174, [1986] 2 S.C.R. 573, 25
C.R.R. 321. McIntyre J., at p. 183, recognized both the deep
roots of freedom of expression in Canadian society, and the
key role it has played in our democratic development:
Freedom of expression is not, however, a creature of the
Charter. It is one of the fundamental concepts that has
formed the basis for the historical development of the
political, social and educational institutions of western
society. Representative democracy, as we know it today,
which is in great part the product of free expression and
discussion of varying ideas, depends upon its maintenance
and protection.
At the same time, bearing in mind the breadth of the
wording of the guarantee in s. 2(b), and the need for a
broad and liberal interpretation to realize the purposes of
the guarantee, this court has shown its preference for the
broad approach set forth by Rand J. in Boucher, supra.
Rejecting the proposition that the Charter's guarantee of
freedom of expression is confined to political matters, this
court held in Ford v. Quebec (Attorney-General) (1988), 54
D.L.R. (4th) 577, [1988] 2 S.C.R. 712, 36 C.R.R. 1, and
Irwin Toy, supra, that the Charter applies to commercial
expression. All activities which convey or attempt to convey
meaning prima facie fall within the scope of the guarantee:
see Irwin Toy, per Dickson C.J.C., Lamer and Wilson JJ.
Within the framework of this general principle, however,
some of the classic rationales for protecting freedom of
expression have been given a limited role in interpreting s.
2(b). Where a government measure limits expressive activity
not by design but in its effects, to make out a violation of
s. 2(b), the claimant must show that the expressive activity
relates to those values identified in Irwin Toy as
underlying the guarantee of freedom of expression in s. 2(b)
of the Charter: the value of seeking and attaining truth;
the value of participation in social and political
decision-making; and individual self-fulfillment and human
flourishing.
C. Hate propaganda and freedom of speech -- An overview
Before entering upon the analysis of whether s. 319(2) of
the Criminal Code is inconsistent with the Charter and must
be struck down, it may be useful to consider the conflicting
values underlying the question of the prohibition of hate
literature and how the issue has been treated in other
jurisdictions.
Hate literature presents a great challenge to our
conceptions about the value of free expression. Its
offensive content often constitutes a direct attack on many
of the other principles which are cherished by our society.
Tolerance, the dignity and equality of all individuals;
these and other values are all adversely affected by the
propagation of hateful sentiment. The problem is not
peculiarly Canadian; it is universal. Wherever racially or
culturally distinct groups of people live together, one
finds people, usually a small minority of the population,
who take it upon themselves to denigrate members of a group
other than theirs. Canada is no stranger to this conduct.
Our history is replete with examples of discriminatory
communications. In their time, Canadians of Asian and East
Indian descent, black, and native people have been the
objects of communications tending to foster hate. In the
case at bar it is the Jewish people who have been singled
out as objects of calumny.
The evil of hate propaganda is beyond doubt. It inflicts
pain and indignity upon individuals who are members of the
group in question. In so far as it may persuade others to
the same point of view, it may threaten social stability.
And it is intrinsically offensive to people -- the majority
in most democratic countries -- who believe in the equality
of all people regardless of race or creed.
For these reasons, governments have legislated against
the dissemination of propaganda directed against racial
groups, and in some cases this legislation has been tested
in the courts. Perhaps the experience most relevant to
Canada is that of the United States, since its Constitution,
like ours, places a high value on free expression, raising
starkly the conflict between freedom of speech and the
countervailing values of individual dignity and social
harmony. Like s. 2(b), the First Amendment guarantee is
conveyed in broad, unrestricted language, stating that
''Congress shall make no law ... abridging the freedom of
speech, or of the press''. The relevance of aspects of the
American experience to this case is underlined by the
factums and submissions, which borrowed heavily from ideas
which may be traced to the United States.
The protections of the First Amendment to the U.S.
Constitution, and in particular free speech, have always
assumed a particular importance within the U.S.
constitutional scheme, being regarded as the cornerstone of
all other democratic freedoms. As expressed by Jackson J.,
in West Virginia State Board of Education v. Barnette, 319
U.S. 624 (1943), ''[]f there is any fixed star in our
constitutional constellation, it is that no official, high
or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force
citizens to confess by word or act their faith therein'' (p.
642). The U.S. Supreme Court, particularly in recent years,
has pronounced itself strongly on the need to protect speech
even at the expense of other worthy competing values.
Nevertheless, tolerance for unpopular speech, especially
speech which was perceived as a threat to vital security
interests, was not initially a hallmark of the U.S. Supreme
Court. When the socialist labour leader Eugene Debs made a
speech critical of United States involvement in the First
World War, the court was content to uphold his conviction
for ''wilfully caus[ing] or attempt[ing] to cause
insubordination, disloyalty, mutiny or refusal of duty in
the military or naval forces... or wilfully obstruct[ing]
the recruiting or enlistment service'': Debs v. United
States, 249 U.S. 211 (1919). A companion case set out the
classic test for the justifiability of an abridgement of
free speech:
The question in every case is whether the words used are
used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent.
Schenck v. United States, 249 U.S. 47 (1919), at p. 52.
The test was stiffened in the famous dissents of Holmes
J. in Abrams v. United States, supra, at p. 628 (''present
danger of immediate evil or an intent to bring it about'')
and Brandeis J. (Holmes J. concurring) in Whitney v.
California, 274 U.S. 357 (1927), at pp. 377-8:
To courageous, self-reliant men, with confidence in the
power of free and fearless reasoning applied through the
processes of popular government, no danger flowing from
speech can be deemed clear and present, unless the incidence
of the evil apprehended is so imminent that it may befall
before there is opportunity for full discussion. If there be
time to expose through discussion the falsehood and
fallacies, to avert the evil by the processes of education,
the remedy to be applied is more speech, not enforced
silence...
Moreover, even imminent danger cannot justify resort to
prohibition of these functions essential to effective
democracy, unless the evil apprehended is relatively
serious... There must be the probability of serious injury
to the State.
This stricter formulation of the ''clear and present
danger'' test came to be accepted as the standard for a
justified infringement of the free speech guarantee, but it
too was subject to varying interpretation. In the crisis
atmosphere of the Cold War, the court upheld convictions of
communists for conspiring to advocate the overthrow of the
United States government in Dennis v. United States, 341
U.S. 494 (1951). Purporting to apply the above test, the
court endorsed the following formulation, at p. 510, ''In
each case [courts] must ask whether the gravity of the
''evil'', discounted by its improbability, justifies such
invasion of free speech as is necessary to avoid the
danger.'' This is how matters stood when hate propaganda
first came to the attention of the court.
In Beauharnais v. Illinois, 343 U.S. 250 (1952), a
closely-divided court upheld the constitutionality of a
statute bearing some resemblance to s. 319(2) of the
Canadian Criminal Code, prohibiting exhibition in any public
place of any publication portraying ''depravity,
criminality, unchastity, or lack of virtue of a class of
citizens, of any race, color, creed or religion [which
exposes such citizens] to contempt, derision or obloquy or
which is productive of breach of the peace or riots''.
Frankfurter J., writing the court's opinion, held that the
statute prohibited libelous utterances directed against
groups, and that these utterances were outside of the ambit
of the First Amendment. Quoting from the court's decision in
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), he stated
at pp. 255-7:
Today, every American jurisdiction [punishes] libels
directed at individuals. ''There are certain well-defined
and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and obscene,
the profane, the libelous, and the insulting or 'fighting'
words -- those which by their very utterance inflict injury
or tend to incite an immediate breach of the peace. It has
been well observed that such utterances are no essential
part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social
interest in order and morality...''
But the full flowering of First Amendment doctrine came
after the Beauharnais case. Later cases have weakened its
authority to the extent that many regard it as overruled. In
the first place, the U.S. Supreme Court has recognized that
libel laws do indeed ''raise constitutional problems''. New
York Times Co. v. Sullivan, 376 U.S. 254 (1964), held that a
public official, in order to bring an action for libel, had
to show that the defamatory statement was directed at the
official personally, and that the maker of the statement had
actual knowledge that it was false. Secondly, the ''clear
and present danger'' test went through yet another
metamorphosis. Brandenburg v. Ohio, 395 U.S. 444 (1969),
struck down a statute forbidding a person to ''advocat[] the
duty, necessity, or propriety of crime, sabotage, violence,
or unlawful methods of terrorism as a means of accomplishing
industrial or political reform'', in a prosecution of a
Klansman who showed a film that was derogatory of Negroes
and Jews and implied that ''revengeance'' should be taken
against them. The test that emerges from Brandenburg is much
stricter than the earlier formulations -- advocacy of the
use of force or violation of the law cannot be proscribed
''except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or
produce such action'' (p. 447).
The U.S. Supreme Court subsequently refused to grant
certiorari in two more recent cases which call Beauharnais,
supra, into question. In Collin v. Smith, 578 F. 2d 1197
(7th Cir. 1978), a federal court struck down an ordinance
forbidding the dissemination of any material (including
public displays of symbolic significance) promoting and
inciting racial or religious hatred, in a case where
neo-Nazis proposed a march, complete with swastikas, through
the predominantly Jewish village of Skokie, Illinois. And in
American Booksellers Ass'n Inc. v. Hudnut, 771 F. 2d 323
(7th Cir. 1985), an ordinance forbidding the display of
''graphic sexually explicit subordination of women'' was
held to be unconstitutional. The effect of these cases has
been to undermine the authority of Beauharnais, supra. As
Tribe, op. cit., at p. 861, n. 2, puts it:
The continuing validity of the Beauharnais holding is
very much an open question. See, e.g., Smith v. Collin, 439
U.S. 916, 919 (1978) (Blackmun, J., dissenting from denial
of certiorari) (noting that Beauharnais ''has not been
overruled or formally limited''). In recent years, courts
have given Beauharnais a very limited reading. In Collin v.
Smith ... the Seventh Circuit stated that ''(i)t may be
questioned after such cases as Cohen v. California, (403
U.S. 15 (1971)), Gooding v. Wilson, (405 U.S. 517 (1972)),
and Brandenburg v. Ohio, (395 U.S. 444 (1969) (per curiam)),
whether the tendency to induce violence approach sanctioned
implicitly in Beauharnais would pass constitutional muster
today.''... In American Booksellers Ass'n Inc. v. Hudnut ...
the Seventh Circuit stated that subsequent cases ''had so
washed away the foundations of Beauharnais that it could not
be considered authoritative.''
It is worth describing a few doctrines associated with
free speech that form part of the reasoning in the U.S.
cases, and which are cited in the factums. One is a
hierarchy of possible abridgements on free speech.
Legislation against the content of speech has been
distinguished from legislation restricting speech in other
ways, with the former attracting stricter judicial scrutiny.
For example, while ''time, place and manner'' regulation of
speech has traditionally been given some latitude, an
ordinance preventing picketing other than labour picketing
near schools has been struck down because it draws a
distinction based on content of the speech: Police
Department of the City of Chicago v. Mosley, 408 U.S. 92
(1972). Viewpoint-based abridgments of speech, in which the
government selects between viewpoints, will very rarely be
justifiable. Section 319(2) of the Criminal Code is probably
best described as content-based rather than viewpoint-based,
because the government itself does not choose between
viewpoints directly. For example, a statement declaring the
superiority of a particular race is not preferred over a
declaration suggesting the reverse hierarchy. Rather, all
discussion of the superiority of a particular race over
another is potentially suspect. This content-based provision
is similar in this regard to the statute forbidding
demonstrations critical of foreign governments within 500
feet of embassies that was struck down as an impermissible
content-based restriction on speech in Boos v. Barry, 108
S.Ct. 1157 (1988). Although not as offensive as
viewpoint-based restrictions, content-based restrictions on
speech have attracted ''most exacting scrutiny'' from the
U.S. Supreme Court, being upheld only if ''necessary to
serve a compelling state interest and... narrowly drawn to
achieve that end'': Perry Education Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37 (1983) at p. 45.
The distinction between content-based and form-based
restrictions on freedom of speech has been incorporated,
although in a different form, into the analysis under s.
2(b) of the Charter: see Irwin Toy, supra.
Two other concepts employed in the United States in cases
dealing with the prohibition of dissemination of racist
literature figured in argument before us. These are the
concepts of overbreadth and vagueness. Overbreadth is
defined by Tribe, op. cit., at p. 1056, as follows:
Statutes which open-endedly delegate to administering
officials the power to decide how and when sanctions are
applied or licenses issued are overbroad because they grant
such officials the power to discriminate -- to achieve
indirectly through selective enforcement a censorship of
communicative content that is clearly unconstitutional when
achieved directly.
If legitimate activity protected by the First Amendment
would come within the terms of the statute, the statute may
be void on its face. Even where the actions of the litigant
are not themselves worthy of protection, the litigant may
rely on the constitutional defect of overbreadth.
Alternatively, an argument of overbreadth may sometimes be
met by a construction of the statute that clearly confines
it within constitutional bounds, if one is available (i.e.,
reading down). If one is not, however, the statute is void
on its face.
Vagueness is distinct from overbreadth, and carries
different consequences in American constitutional law. To
quote Tribe again at pp. 1033-4:
Vagueness is a constitutional vice conceptually distinct
from overbreadth in that an overbroad law need lack neither
clarity nor precision, and a vague law need not reach
activity protected by the first amendment. As a matter of
due process, a law is void on its face if it is so vague
that persons ''of common intelligence must necessarily guess
at its meaning and differ as to its application.'' Such
vagueness occurs when a legislature states its proscriptions
in terms so indefinite that the line between innocent and
condemned conduct becomes a matter of guesswork...
But vagueness is not calculable with precision... []he
Supreme Court will not ordinarily invalidate a statute
because some marginal offenses may remain within the scope
of a statute's language. The conclusion that a statute is
too vague and therefore void as a matter of due process is
thus unlikely to be triggered without two findings: that the
individual challenging the statute is indeed one of the
entrapped innocent, and that it would have been practical
for the legislature to draft more precisely. (Citations
omitted.)
Thus, vagueness of a statute is a defence only in more
restrictive circumstances: where the statute is vague as
applied to the conduct of the litigant, or where it is vague
in all possible applications. An example of the latter was
an ordinance making it illegal for ''three or more persons
to assemble ... on any of the sidewalks ... and there
conduct themselves in a manner annoying to persons passing
by'', struck down in Coates v. City of Cincinnati, 402 U.S.
611 (1971).
The rationale for invalidating statutes that are
overbroad (even in a case where the litigant's conduct is
clearly not protected by the First Amendment) or vague is
that they have a chilling effect on legitimate speech.
Protection of free speech is regarded as such a strong value
that legislation aimed at legitimate ends and in practice
used only to achieve those legitimate ends may be struck
down, if it also tends to inhibit protected speech.
In the United States, a provision similar to s. 319(2) of
the Criminal Code was struck down in Collin v. Smith, supra,
on the ground that is was fatally overbroad. In addition,
the Seventh Circuit Court of Appeals hinted that the
provision might also be void for vagueness. The ordinance in
Collin prohibited ''[]he dissemination of any materials
within the Village of Skokie which promotes and incites
hatred against persons by reason of their race, national
origin, or religion, and is intended to do so''. The court
found that the activity in question in the case -- a
proposed neo-Nazi demonstration in Skokie, Illinois -- was a
form of expression entitled to protection under the First
Amendment. The ordinance, it found, was overbroad in that it
''could conceivably be applied to criminalize dissemination
of The Merchant of Venice or a vigorous discussion of the
merits of reverse racial discrimination in Skokie'' (p. 1207).
Legislation against the dissemination of racial
propaganda has also been tested under various international
instruments, providing a counter-example to the U.S.
experience. The European Convention for the Protection of
Human Rights and Fundamental Freedoms contains the following
articles:
Article 10
(1) Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers...
(2) The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.
The European Commission on Human Rights has had little
difficulty in holding that prosecutions for dissemination of
racist ideas and literature are permitted under the article:
see, e.g., Glimmerveen v. Netherlands (1979), 4 E.H.R.R.
260. In view of the breadth of the limitations clause, which
specifically mentions the protection of ''health or morals''
and ''the reputation or the rights of others'', this is
unsurprising. In other contexts, protection for free
expression under this article has at times been decidedly
lukewarm, as befits an international instrument which is
designed to limit as little as possible the sovereignty of
the nations that signed it. For example, the European Court
of Human Rights also upheld prosecution of a bookseller in
Northern Ireland for distributing The Little Red Schoolbook,
an educational book on sexuality aimed at 12 to
18-year-olds, on the grounds that the prosecution was ''for
the protection of health or morals'': Handyside v. United
Kingdom (1976), 1 E.H.R.R. 737.
Other international instruments go further, and require
state parties to prohibit some forms of hate propaganda. The
International Covenant on Civil and Political Rights, to
which Canada is a party, provides as follows:
Article 19...
2. Everyone shall have the right to freedom of
expression...
3. The exercise of the rights provided for in paragraph 2
of this article carries with it special duties and
responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided
by law and are necessary;
(a) for respect of the rights or reputations of others;
(b) for the protection of national security or of public
order... or of public health or morals.
Article 20...
2. Any advocacy of national, racial or religious hatred
that constitutes incitement to discrimination, hostility or
violence shall be prohibited by law.
The U.N. Human Rights Committee has dismissed a complaint
against Canada brought by Mr. Taylor (also appealing to this
court) on the grounds that Canada was merely carrying out
its international obligations in proceeding against Mr.
Taylor for the dissemination of hatred against ethnic
groups: see Taylor and Western Guard Party v. Canada,
Communication No. R. 24-104, Report of the Human Rights
Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983)
(reported in part in (1983), 5 C.H.R.R. D/2097).
Similar obligations are set forth in another convention
to which Canada is a party, the International Convention on
the Elimination of All Forms of Racial Discrimination, Can.
T.S. 1970, No. 28. Article 4 provides that States Parties:
Article 4
(a) Shall declare an offence punishable by law all
dissemination of ideas based on racial superiority or
hatred, incitement to racial discrimination as well as all
acts of violence or incitement to such acts against any race
or group of persons of another colour or ethnic origin, and
also the provision of any assistance to racist activities,
including the financing thereof;
(b) Shall declare illegal and prohibit organizations, and
also organized and all other propaganda activities, which
promote and incite racial discrimination, and shall
recognize participation in such organizations or activities
as an offence punishable by law;
(c) Shall not permit public authorities or public
institutions, national or local, to promote or incite racial
discrimination.
These international instruments embody quite a different
conception of freedom of expression than the case law under
the U.S. First Amendment. The international decisions
reflect the much more explicit priorities of the relevant
documents regarding the relationship between freedom of
expression and the objective of eradicating speech which
advocates racial and cultural hatred. The approach seems to
be to read down freedom of expression to the extent
necessary to accommodate the legislation prohibiting the
speech in question.
Both the American and international approach recognize
that freedom of expression is not absolute, and must yield
in some circumstances to other values. The divergence lies
in the way the limits are determined. On the international
approach, the objective of suppressing hatred appears to be
sufficient to override freedom of expression. In the United
States, it is necessary to go much further and show clear
and present danger before free speech can be overridden.
The Charter follows the American approach in method,
affirming freedom of expression as a broadly-defined and
fundamental right, and contemplating balancing the values
protected by and inherent in freedom of expression against
the benefit conferred by the legislation limiting that
freedom under s. 1 of the Charter. This is in keeping with
the strong liberal tradition favouring free speech in this
country -- a tradition which had led to conferring
quasi-constitutional status on free expression in this
country prior to any bill of rights or Charter. At the same
time, the tests are not necessarily the same as in the
United States.
Having reviewed the American and international experience
on the subject of hate propaganda, I conclude with a brief
history of the attempts to curb such expression in Canada.
Two crimes with ancient roots have been treated as being
relevant to hate propaganda in Canada. In Boucher v. The
King, supra, the Crown attempted to charge a Jehovah's
Witness, who had accused Quebeckers and Catholics of
persecuting the Witnesses, with the crime of seditious libel
(currently s. 59 of the Criminal Code ). This court,
however, held that intention to produce feelings of hatred
and ill will between different classes of His Majesty's
subjects fell short of seditious intent. Something more,
such as intention to disturb order or to resist authority,
was needed.
The other offence of general application that has been
considered relevant to hate propaganda is that of spreading
false news (currently s. 181 of the Criminal Code ). This
crime, which may be traced back to the offence De Scandalis
Magnatum (1275), was originally intended to prohibit the
spreading of false rumours that would sow discord between
the King and great men of the realm. The same pamphlet that
was adjudged not to be a seditious libel in Boucher was the
subject of a prosecution for spreading false news in R. v.
Carrier (1951), 104 C.C.C. 75, 16 C.R. 18 (Que. K.B.). The
court acquitted, holding that s. 181 was similarly
circumscribed, and could not be applied to a pamphlet that
was not intended to arouse disorder. More recently, however,
s. 181 was applied to attacks on Jews that the accused was
found to have known to be false in R. v. Zundel (1987), 31
C.C.C. (3d) 97, 35 D.L.R. (4th) 338, 58 O.R. (2d) 129
(C.A.). Its application to hate propaganda, like the hate
propaganda offences themselves, has been controversial.
These provisions, especially in light of the limiting
court decisions, were regarded by many as being inadequate
to deal with the perceived problem of hate propaganda. In
response to the representations of various groups, and after
a reported upsurge in neo-Nazi activity in the early 1960's
in Canada, the U.S. and Britain, the Minister of Justice in
1965 set up a Special Committee to study hate propaganda
(the Cohen Committee). The Committee reported in 1966, and
recommended the addition of new offences to the Criminal
Code. In 1970, after former Committee member Pierre-Elliot
Trudeau had become Prime Minister, these recommendations
were acted upon. The Criminal Code was amended by the
addition of new offences of advocating genocide (s. 318),
public incitement of hatred likely to lead to a breach of
the peace (s. 319(1)), and wilful promotion of hatred (s.
319(2)).
Strategies for the curtailment of hate propaganda have
not been confined to the Criminal Code. As far back as 1934,
s. 19 of the Manitoba Defamation Act, R.S.M. 1987, c. D20
(then s. 13A of the Libel Act ) provided injunctive relief
for members of a libelled racial or religious group, where
such libel was ''likely to expose persons belonging to the
race, or professing the religious creed, to hatred, contempt
or ridicule and tend[] to raise unrest or disorder among the
people''. Subsequently, provisions with potential
application to hate propaganda were included in various
human rights statutes. The first of these was Ontario's
Racial Discrimination Act, 1944, S.O. 1944, c. 51, s. 1,
which prevented the publication or display of ''any notice,
sign, symbol, emblem or other representation indicating
discrimination or an intention to discriminate against any
person or any class of persons for any purpose because of
the race or creed of such person or class of persons''.
Gradually, all Canadian jurisdictions enacted comparable
provisions, the most recent and far-reaching of these being
s. 13 of the Canadian Human Rights Act, S.C. 1976-77, c. 33,
which is under attack in the companion appeal of Canada
(Human Rights Commission) v. Taylor, S.C.C., No. 20462
[summarized 24 A.C.W.S. (3d) 311] The provisions in the
provincial Acts prohibiting the publication of a ''notice,
sign, symbol, emblem or other representation'' apply
paradigmatically to signs with messages such as ''No Blacks
Allowed''. Some attempt has been made to apply them to hate
propaganda, but the courts have foreclosed such a broad
interpretation. Application of the Manitoba provision to a
series of allegedly discriminatory newspaper articles was
rejected in Re Warren and Chapman (1984), 11 D.L.R. (4th)
474, [1984] 5 W.W.R. 454, 29 Man. R. (2d) 172 (Q.B.), and an
editorial in a student newspaper (including cartoons) that
was offensive to women was held not to be a
''representation'' within the meaning of s. 14(1) of the
Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, in
Saskatchewan (Human Rights Commission) v. Engineering
Students' Society (1989), 56 D.L.R. (4th) 604, 72 Sask. R.,
10 C.H.R.R. #D/5636 (C.A.), leave to appeal refused, 57
D.L.R. (4th) viii, 81 Sask. R. 160n, [1989] 1 S.C.R. xiv.
Besides being limited in scope, many of these provisions
contain an exemption for ''free speech'' or ''free
expression of opinion'': see, e.g., The Saskatchewan Human
Rights Code, s. 14(2).
Section 13 of the federal Act is unique among human
rights provisions. It declares to be a discriminatory
practice the repeated communication by telephone of ''any
matter that is likely to expose a person or persons to
hatred or contempt by reason of the fact that that person or
those persons are identifiable on the basis of a prohibited
ground of discrimination''. It contains no explicit
exemption for free speech or expression. Enforcement is by
''cease and desist'' order registrable with the Federal
Court, which, if violated, can give rise to contempt
proceedings.
II. The scope of s. 2(b) of the Charter

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